No Justice For Omar Khadr At Guantanamo

Exactly two years ago, when I began writing a weekly column for the Future of Freedom Foundation on Guantánamo, torture and other crimes and abuses committed as part of the Bush administration’s “War on Terror,” I focused on the story of Omar Khadr, the Canadian citizen who was just 15 years old when he was seized after a firefight in Afghanistan in July 2002, and the news today that he has accepted a plea deal, and has agreed to an array of charges relating to terrorism and murder in exchange for a reported eight-year sentence, does nothing to diminish the profound sense of unease — and of warped justice — that has plagued Khadr’s case for the last eight years.

In that article, written while Khadr was enduring interminable pre-trial hearings for a planned trial by Military Commission under the Bush administration, I analyzed an important, and almost completely overlooked document regarding the treatment of juvenile prisoners at Guantánamo — those under 18 at the time their alleged crime took place.

That document, “Recommended Course of Action for Reception and Detention of Individuals Under 18 Years of Age” (PDF), prepared for the Pentagon by four doctors at Guantánamo, was dated January 14, 2003, three months after Khadr arrived at Guantánamo from Bagram, and just three weeks after the Bush administration ratified the UN Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict. The Optional Protocol includes the agreement that all States Parties who ratify the Protocol “[r]ecogniz[e] the special needs of those children who are particularly vulnerable to recruitment or use in hostilities,” and are “[c]onvinced of the need [for] the physical and psychosocial rehabilitation and social reintegration of children who are victims of armed conflict.”

Compare this with my explanation of the doctors’ report two years ago:

The doctors’ document began by noting, “All efforts should be made to keep those in the pediatric age range [those under 18] from undergoing detention at Guantánamo Bay, Cuba,” and pointing out, “People less than age 18 years are emotionally, psychologically, and physically dynamic and complex. If it is determined that they must be detained, then all aspects of their transport, in-processing, and detainment should be specific for this age group.” They added, as a stark warning, “Exposure of pediatric detainees to adult detainees will have a high likelihood of producing physical, emotional, and psychological damage to the pediatric detainee. As such, all activities of the pediatric detainee, prior to and including detention, should be isolated by sight and sound from the adult population of detainees.”

As a result of the US ratification of the Optional Protocol, and the doctors’ recommendations, Khadr should, therefore, have been rehabilitated as a juvenile (having been influenced by an adult — in his case, his father, a reported fundraiser for Osama bin Laden, who had taken him to Afghanistan as a child), or, at the very least, held separately from the adult population at Guantánamo, and provided with education and psychological care.

Of course, the Bush administration ignored its international obligations, and the advice of its own doctors, choosing instead to subject Khadr — and the majority of the 21 other confirmed juvenile prisoners at Guantánamo — to experimental detention and interrogation techniques, with no distinction made between adult and juvenile prisoners.

Moreover, in May 2003, when the story broke that child prisoners were being held at Guantánamo, defense secretary Donald Rumsfeld declared that they were “not children,” and the administration’s disdain for the rights of juvenile prisoners was such that Khadr and another juvenile prisoner, Mohamed Jawad, were put forward for trial by Military Commission. These special courts, conceived for trying dubious “war crimes,” were initially intended to accept evidence obtained through the use of torture, and to deliver the death penalty after trials that were noticeably lacking in any recognizable form of due process or adherence to established military law.

Khadr was charged in the first incarnation of the Commissions, ruled illegal by the Supreme Court in June 2006, but after Congress brought them back to life in the fall of 2006 he was charged for a second time, and was followed, soon after, by Jawad, who may have been no more than 14 years old when he was seized after a grenade attack in Kabul in December 2002.

When President Obama came to power, one of his first acts was to suspend the Commissions, but by May 2009 he had softened his opposition to the much-criticized trial system, and last summer the Obama administration worked with Congress to revive them yet again. In the meantime, Jawad was released, after his lawyers established that he had produced a false confession to Afghan forces on the day of his capture, while being threatened with torture, but last November, when Attorney General Eric Holder announced that five prisoners would face trials by Military Commission, Khadr was one of the first five names put forward.

If the Bush administration didn’t care that he was a child on capture, the Obama administration was not so sure. In leaks to major media outlets throughout this year, officials complained about the negative publicity surrounding the first planned trial of a juvenile for war crimes since the Second World War, culminating, in August, with officials whining to the New York Times that complaints about Khadr’s trial were “undermining their broader effort to showcase reforms that they say have made military commissions fair and just.”

This latter claim was deeply suspicious, as Lt. Col. David Frakt, defense attorney for Mohamed Jawad and another Guantánamo prisoner, Ali Hamza al-Bahlul, explained in April this year that, although Khadr is charged with murder in violation of the law of war for allegedly throwing a hand grenade that killed a US Delta Force soldier, “there is no evidence that he violated the law of war in doing so.”

Lt. Col. Frakt proceeded to explain how first the Bush administration, then Congress, and then the Obama administration had confused lawful and unlawful targets during wartime, and I explained the result of the administration’s hypocrisy and confusion in an article at the time of the officials’ complaint to the New York Times:

Given that the Obama administration chose to ignore both of these criticisms in proceeding with Khadr’s trial, the complaint aired to the Times by anonymous officials — that “No one intended the Khadr case to be the first trial under the revamped system,” as Charlie Savage described it — is frankly reprehensible, as it involves the explicit recognition that the entire trial is unacceptable, and would only be acceptable if it could have been hidden behind the coat tails of a more prominent case — one, for example, that involved recognizable allegations of terrorism.

The outcome, predictably, was a feverish attempt to cut a deal to prevent a full-blown trial from going ahead, reducing Khadr to the role of a pawn in a face-saving game of extraordinary cynicism. Attempts to secure a plea deal were first made in summer, which were sabotaged by Khadr, and were then submerged after his defense lawyer was taken ill and proceedings were suspended, but as today’s trial date approached, the horse-trading resumed with a vengeance.

According to media reports over the last few days, Khadr was offered a plea deal giving him an eight-year sentence (one more year at Guantánamo, plus seven years to be served in Canada) in exchange for a confession to some or all of the charge against him, but as Dennis Edney, one of his Canadian civilian lawyers, explained on Sunday, “All I can tell you is there’s [a] trial tomorrow, and there’s no deal in place as of this particular moment.” Edney added, “Consider the circumstances he’s in: There’s not much choice Omar Khadr has. He either pleads guilty to avoid trial, or he goes to trial, and the trial is an unfair process.”

As Michelle Shephard reported in the Toronto Star, Edney also “hinted that Khadr was still conflicted,” stating, “He has a tough time rationalizing … why he is singled out to be on trial Monday. Where are the rest of those so-called bad guys?”

Edney did not speak specifically about Canada’s role, although several news outlets reported that, on Thursday, Secretary of State Hillary Clinton phoned Lawrence Cannon, the Canadian Foreign Affairs Minister, to talk about the Khadr case, and, allegedly, “to press the Conservative government into repatriating” Khadr. Cannon, however, remained tight-lipped about the conversation, reflecting another aspect of Khadr’s manipulation as a pawn, in this case by the government of his home country.

Despite signing the Optional Protocol to the UN Convention on the Rights of the Child on the involvement of children in armed conflict on July 7, 2000, and advocating on the world stage for the rights of child soldiers from other countries, the Canadian government persistently refused to call for his repatriation, even though Canada’s Supreme Court had repeatedly stated that the government acted illegally in sending interrogators to interview Khadr at Guantánamo in 2003, and violated his rights under Canadian law.

With this track record, it would have been unsurprising if Khadr was unwilling to trust his home government even to accept the terms of a plea deal, and this must, of course, have been a deeply disturbing position in which to find himself. As a final reminder of hypocrisy, however, it is difficult to beat a comment about child soldiers made just six weeks ago by Ambassador Susan E. Rice, the US Permanent Representative to the United Nations, at a Security Council debate on Somalia, which was picked up on by former US interrogator Matthew Alexander in an article in the Huffington Post. Ambassador Rice stated:

The United States strongly condemns the use of children … to pursue violent agendas. We call upon all parties to immediately release all children within their ranks, to halt child recruitment, and to provide for the proper reintegration into civilian life of former child soldiers.

No wonder Omar Khadr, the victim of rank hypocrisy from both the US and the Canadian governments, feels “singled out,” as that is exactly what has happened to him, and the plea deal announced today does nothing to indicate that justice has actually been served. Although the exact details of the deal have not yet been revealed, it seems clear that one thing they will involve is Khadr’s agreement that he will not appeal the terms of his confession, leaving unchallenged a number of otherwise legally questionable charges.

As the Globe and Mail explained, these included his acceptance of the charge that “he was an ‘alien, unprivileged, enemy belligerent,’ unqualified therefore to shoot back or engage in combat hostilities with US or other coalition forces,” and that he was guilty of “murder in violation of the laws of war,” both of which are charges that should shame the United States.